Thompson & Anor v Middleton

This is an appeal by James Thompson and Fortis Insurance Ltd against the order made by HH Judge Reddihough sitting in the Reading County Court on 20 December 2010. The judge awarded the claimant, Mr Matthew James Middleton, damages of £461,007 for personal injuries sustained in a road traffic accident which occurred on 7 February 2003. The circumstances of the accident were simple. The First appellant/defendant’s car shunted into the rear of the respondent/claimant’s stationary vehicle, causing it to be pushed forward by about four feet. The respondent was 20 years old at the date of the accident.

The bases of this appeal are first that the sum awarded is so surprisingly high for an injury following so apparently trivial an accident that the judge’s findings are, for that reason alone, to be regarded as open to question. Second, it is submitted that, on examination, it can be seen that the judge has not properly analysed the evidence before him, in particular the evidence of the consultant psychiatrist instructed by the appellants. Tomlinson LJ gave permission to appeal, observing that the outcome of the action was ‘sufficiently striking’ to justify re-examination but warning that the appellants would face obvious difficulties in overturning the judge’s findings of fact.

Before I can consider the merits of the appeal it is necessary to set out the history of the action, which, as will be seen, took an unusual course.

Proceedings were begun in January 2006 in the Great Grimsby County Court where the claim was limited to £100,000. Liability to compensate the respondent was admitted in the defence but causation and quantum were put in issue. Judgment was entered for the respondent on 27 March 2006.

There had already been an exchange of medical evidence. The respondent relied on reports of an orthopaedic surgeon Mr S Shafqat FRCS and a neurologist Dr F Ahmed FRCP. Dr Ahmed’s report dealt mainly with a discrete issue which is no longer relevant and I will not need to say much about it. Mr Shafqat initially reported in October 2003 that the respondent had suffered a whiplash injury to the neck and lumbar spine. These were soft tissue injuries from which he could be expected to make a good recovery. He had already made an almost complete recovery from the neck symptoms; however, there was still quite severe restriction of movement in the lumbar spine and these symptoms might persist for up to 2 years. By 2005, it was apparent from Mr Shafqat’s second report that, although the neck pain had resolved, the lower back pain and restriction of movement were proving intractable. No abnormality could be found on MRI scan. Some disadvantage on the labour market was foreseen. This was the position set out in the particulars of claim. Mr Shafqat suggested the possibility that the back pain, which was lasting longer than expected, might be related to a viral illness which the respondent had suffered in late 2002 but Dr Ahmed reported that there was no connection. His report was never challenged by the appellants.

In August 2006, the appellants instructed an orthopaedic surgeon, Mr T J Cain FRCS. His report, which included a full review of the general practitioner (GP) records, opined that, apart from minor inconsequential symptoms, the effects of the respondent’s accident had ceased within 8 months of its occurrence and that any continuing symptoms or disability were unrelated to the accident. He based this view, at least in part, on the fact that the respondent had been able to return to work about 8 months after the accident and had remained at work for some time but had since deteriorated. He said that because there was no evidence of psychological overlay, one would have to attribute any exacerbation of symptoms to an underlying physical disorder. He suspected that the respondent had degenerative disc disease and early degenerative changes in the lumbar spine and probably in the cervical spine as well. Mr Shafqat disagreed and maintained his view that all the symptoms of pain and restriction of movement of which the respondent was still complaining were attributable to the accident. As he understood it, the symptoms had persisted without a break since the accident. Moreover, there was nothing in the medical history to indicate that the respondent had any underlying constitutional condition which might account for his symptoms.

In late 2006, the appellants obtained a psychiatric report. One can understand why it might be thought that psychiatric factors were perpetuating the claimant’s symptoms; the initial accident had been of a minor nature yet the claim had grown so that it now entailed continuing disability, loss of earnings and permanent loss of earning capacity. The report of Dr G E P Vincenti, dated December 2006, gave a provisional opinion, on the basis of the medical records (which he thought were probably incomplete) but without the benefit of clinical examination. He said that there were at least two possibilities to account for the respondent’s failure to recover as expected which had nothing to do with psychiatry. First, he might be fabricating his symptoms for gain. Second, he might be suffering genuine residual symptoms. Both such areas were outside the psychiatrist’s expertise. Another possibility was that the respondent was suffering from chronic fatigue syndrome and it was suggested that the insurers might like to take an opinion from an expert in this field. Finally, Dr Vincenti noted the high value of the claim being advanced and advised that there were some clues to the possibility of psychological overlay. He suggested that, if this aspect were to be fully explored, he would need further information and the opportunity to make a clinical assessment. The defendants did not take up that suggestion and did not disclose Dr Vincenti’s report.

By mid-2007, the respondent was still receiving medical treatment and had been referred to a pain management clinic. It was not at that time possible to assess the value of his claim or indeed to be certain when assessment would be possible. Accordingly, it was agreed by the parties and ordered by a district judge on 26 July 2007 that the issue of causation and the quantification of special damages to date should be tried as preliminary issues.

The two orthopaedic surgeons prepared a joint statement. They agreed that the respondent had suffered a soft tissue injury to the cervical and lumbar spine. They agreed that he was a reliable historian. In other respects, they disagreed on the basis set out above. Shortly before the hearing, Mr Shafqat wrote a further letter explaining, for the first time, his theory about the physical changes which were giving rise to the claimant’s continuing symptoms. He advanced the theory, which he accepted could not be proved, that there had been damage to the facet joints or to the capsules of the joints. This damage would not show up on MRI scan or X-ray. Damage of this nature was likely to give rise to persistent symptoms and Mr Shafqat did not anticipate any real improvement in the respondent’s condition.

It must be noted that the appellants chose to join issue on causation on the sole basis of the disagreement between two orthopaedic surgeons: one was saying that all the respondent’s symptoms were attributable to physical damage sustained in the accident and other that the effects of the accident had worn off within 8 months and that any continuing symptoms should be attributed to naturally occurring disc degeneration. There was no suggestion that the claimant had an underlying psychological condition which was the cause of or contributing to his behaviour, symptoms or disabilities.

The trial of the preliminary issues came before HH Judge Reddihough in Grimsby in September 2007. The respondent gave evidence and his medical records were extensively considered. His pre-accident medical history was not entirely straightforward. As a child, he had had two apparently minor episodes of neck pain. He had always been a keen sportsman and had suffered a knee injury in 1997 at the age of about 14. This had given rise to recurring problems for which the treating doctors could not find any organic basis. In due course, the respondent had been able to resume football and rugby. On leaving school, he had taken employment at Grimsby Leisure Centre and appears to have undertaken a good deal of physical activity. In December 2002, he developed an illness later diagnosed as a viral illness which was accompanied by fatigue and weight loss. He was still off work (by that time he was working as a security guard) as a result of that illness, at the time of the road traffic accident. The medical records describe the findings following the accident and the continuing complaints of pain and restriction of movement for which no organic cause could be found. They also refer to investigations (which continued into 2005) into the respondent’s fatigue and weight loss. The respondent returned to work in October 2003 and, over the next three years, undertook a variety of jobs. In July 2006, he gave up his job and his doctor certified him unfit for work due to his back symptoms. In late 2006, he was referred to a Pain Management Clinic, where he had acupuncture and treatment by trigger point injections.

At the hearing, the respondent’s case was that he had never been free of pain and stiffness in the lumbar spine since the accident. The pain was variable from day to day but was always present. It was aggravated by bending or prolonged sitting, standing or walking. He had difficulty in moving. He took strong painkillers. His sleep was impaired and his social life restricted. His case on economic loss was that, but for the accident, he would have returned to the leisure industry when he was old enough to become a personal trainer, with better wages than had been open to him earlier. If he had not been able to progress satisfactorily in the leisure industry, he would have become a professional driver and, from the age of 25, a heavy goods vehicle driver. Neither type of work was now open to him on account of his back symptoms. His schedule of special damage was based upon his potential earnings as a driver.

At the hearing, the defendant did not attack the respondent’s evidence as untruthful. It was not suggested that he was malingering, that is deliberately fabricating or exaggerating his complaints. Nor was it suggested that there were any underlying psychological factors in play. Instead, by reference to the medical records, he was cross-examined extensively about his symptoms in an attempt to demonstrate that there had been an effective recovery from the back symptoms and then an apparent deterioration. This would support Mr Cain’s opinion that there had been a break between the pain and disability following the accident and the later deterioration which was to be attributed to the development of a constitutional back condition. For example, it was pointed out that the respondent appeared to have told the physiotherapist at the end of his first course of treatment in August 2003 that his neck pain had fully resolved and that his only symptom was a dull ache in the lumbar spine which occurred following prolonged activity. It was put to him that, in the same month, he had told the physiotherapist that he was working on his car a lot. The respondent said that these entries did not represent the true position; his back had been stiff and painful all the time and he had not done much work on his car. It was also put to him that, in January 2005, he had told the physiotherapist that his back only hurt when he sneezed. He said that was a mistake; he had said that that was when his back pain was at its worst.

Apart from the evidence of the respondent and members of his immediate family, the judge received oral evidence from both orthopaedic surgeons, as well as reading their reports, letters and a joint statement. In his oral evidence Mr Cain said that he thought that there might now be an element of psychological overlay in the claimant’s perception of his symptoms.

In his judgment, the judge accepted the respondent’s evidence about the persistence of his symptoms, (which evidence had been supported by members of his family) and also his explanations for the entries in the medical records relied on by the appellants. Before doing so, he had remarked that the appellants and Mr Cain personally had expressly accepted the respondent’s bona fides but noted that Mr Cain had said in oral evidence that he thought ‘there was now perhaps some psychological element to the claimant’s pain’. The judge appears to have accepted that opinion, observing that it was not inconsistent with the evidence (which came from both the respondent and his father) that the respondent had become depressed as the result of his prolonged inactivity.

The judge made a careful analysis of the conflicting opinions of the two orthopaedic surgeons. His conclusion was to prefer the opinion of Mr Shafqat to that of Mr Cain. It is not necessary for me to discuss the reasons for that preference; his decision was not appealed. The judge found that the road traffic accident had caused facet joint damage in the lumbar spine and that this physical damage was the cause of all the back symptoms and disability since the accident.

The judge then went on to assess the special damages to date. He accepted that all the absences from work since October 2003 were attributable to the accident and he assessed quantum on the basis that the respondent would, from April 2004, have worked as a driver rather than as a security guard. He accepted that the respondent came of a family with a strong work ethic and awarded damages on the basis of continuous employment. He deducted the earnings which the respondent had actually received between the accident and the hearing but rejected the appellants’ contention that further reductions should be made to take account of work of a light nature which the respondent ought to have undertaken. The judge held that it was reasonable for him not to work while undergoing treatment and while signed off as unfit by his GP.

There were some smaller heads of special damage and the total award, with interest, amounted to £32,218. The judge then observed that there would have to be a further hearing for the assessment of general damages for pain suffering and loss of amenity and future financial loss. He anticipated that further medical evidence would be required, particularly in respect of the respondent’s prognosis.

On 11 October 2007 directions were given for the further hearing. These included permission for the parties to instruct pain management experts. The respondent instructed Dr Charles Pither, a consultant pain specialist. The appellants did not serve a pain expert’s report and, at a further directions hearing on 12 March 2008, Judge Reddihough directed that Dr Pither should be the pain management expert in the case. Both parties were to be permitted to ask questions of him. At a further directions hearing on 10 March 2009, a district judge in Grimsby ordered the appellants to disclose Dr Vincenti’s report. I think that by this time Judge Reddihough had moved to the Reading County Court. On 11 June 2009, before a circuit judge in Grimsby, the appellants sought permission to rely on a psychiatric report. This was refused but it had by this time been agreed that the case should follow Judge Reddihough to Reading where the application in respect of psychiatric evidence was to be renewed. At that stage, the defendants obtained a desktop report from the consultant forensic psychiatrist Dr Peter Wood. The respondent wished to oppose reliance on that report but, seeing that some psychiatric evidence might well be regarded as relevant and fearing that costs would be awarded against him if Judge Reddihough were to grant permission, the point was conceded and an order was made by consent on 25 November 2009. This permitted the appellants to rely on the desktop report, required the respondent to submit to a clinical examination by Dr Wood and granted the respondent permission to rely on a psychiatric expert of his own. The two psychiatrists were to produce a joint statement of their views. Further directions dealt with care experts, schedules of damage and such matters.

Dr Pither first reported in January 2008. His opinion, based on clinical examination and a review of the medical records, was that the respondent was suffering from back pain associated with the accident. There had been no suggestion that he was exaggerating or malingering. There was however, some hint, derived from the history revealed in the medical records, that the respondent was ‘vulnerable to any ongoing pain complaint’. However, this ‘would not diminish the reality of his problem’. The prognosis was uncertain. There was no curative treatment but ‘he would benefit from a more focussed functional approach to his difficulties’. Dr Pither suggested a rehabilitative exercise programme which would help the respondent to become more active. He provided information about centres at which such a programme would be available and, at the appellants’ expense, the claimant underwent a four week course of treatment in October 2008. The report from the centre, signed by Dr Pither, spoke of the hope that the respondent would be able to build on his achievement. A further report from Dr Pither dated 12 December 2008 said that as a result of the course, the respondent had reduced his reliance on pain killing drugs. His mood had improved, although he still had a tendency to ‘catastrophise’. He was still experiencing pain and his functional capacity had not improved. Dr Pither felt unable to recommend any further treatment. The prognosis was guarded. Pain was likely to be a permanent feature although there was likely to be some improvement in the respondent’s health once the compensation claim was resolved. Dr Pither stressed that he did not think that the respondent was consciously exaggerating his symptoms. However, he thought that, in common with many claimants, the end of litigation would bring about the removal of stress factors in his life and this would lead to a gradual improvement over a period of about three years. He considered whether the extent of that improvement would permit a return to work and concluded that while this was possible it was improbable.

On 19 June 2009, Dr Pither answered a series of questions posed, I think, by the respondent’s solicitor. He said that, in his view, Mr Shafqat’s theory of facet joint damage was ‘a perfectly reasonable explanation for a source of ongoing, accident-related, tissue pain’ in the respondent’s back. However, he thought that the respondent now had a much larger problem, best described as a chronic spinal pain syndrome. He saw many patients with a similar range of problems, most of them not involved in litigation. Asked to comment on the psychological opinion of a Dr Van der Horst, who had examined the respondent in 2004, he said that this opinion demonstrated that the respondent was ‘not prone to the development of psychosomatic symptoms on the basis of his personality’. Asked how the respondent would have fared had he not had the accident or other similar traumatic physical insult, Dr Pither said that there was no reason to think that he would have spontaneously developed a pain syndrome. He advised that it would not be in the respondent’s best interests to move to single storey accommodation; it would be better for him to continue to use stairs which he would find easier as he improved once litigation was over. Asked about suggestions that the respondent was ‘engaging in unusual pain behaviours’ and that this implied exaggeration of symptoms, Dr Pither said that the respondent had been taught various strategies for reducing pain and he did not think that these represented abnormal pain behaviour. Finally, he advised that he did not think that it was either necessary or desirable that there should be psychiatric reports. The reports of Dr Van der Horst were available and suggested no serious psychopathology. Any further delay in the resolution of the claim was undesirable; the respondent needed to ‘move on’.

On 20 July 2009, the appellants served a series of questions which Dr Pither answered on 27 August 2009. He maintained his position.

Dr Wood’s first report, dated 24 July 2009, was based only upon disclosed documents and records. Many of these records pre-dated the accident and practically all of them pre-dated the trial of the preliminary issues of causation and loss to date. At paragraph 25 of the report, Dr Wood made it clear that he had seen the judgment of Judge Reddihough. He must therefore be taken to have been aware that the appellants’ case on causation had been put solely on the basis of a disagreement as to the orthopaedic evidence, that the appellants had not contended that the respondent’s symptoms were due wholly or partly to a psychosomatic condition, that the judge had already made findings of fact, that he had found that the respondent was genuinely suffering from continuing pain due to facet joint damage and that the only psychological element in the case was some functional overlay arising from depression and frustration about his condition. Notwithstanding his knowledge of those matters, Dr Wood expressed the view that, by the time he suffered his accident in 2003, the respondent was ‘well on the way towards’ being a case of undifferentiated somatoform disorder (USD). This is a psychosomatic disorder which, in the respondent’s case, was said to have manifested itself by abnormal healthcare- seeking behaviour. This opinion was based partly on the pre-accident history of physical injuries with apparently prolonged effects, the viral illness with weight loss and chronic fatigue syndrome, suspected drug abuse, depression, narcissism, (based upon the presence of tattoos), indications of a history of self-harm and relationship difficulties and partly on the degree of disability complained of arising from the road traffic accident which Dr Wood described as ‘extraordinary’. The accident and subsequent litigation had, he said, served to reinforce a particular aspect of the respondent’s constitutional psychological disability. It was Dr Wood’s opinion that the respondent was probably, by virtue of his condition, a person who was destined to continue to exhibit abnormal illness behaviour, absent the accident. His somatoform disorder was likely to run a chronic life-long course ebbing and flowing in severity. Dr Wood thought that the respondent had been in a poor psychiatric condition just before the accident and that, in the 12 months following the accident, he had made a reasonable physical and psychiatric recovery. The subsequent deterioration in his ability to cope was, in Dr Wood’s view, much more likely to be linked to his constitutional condition of USD than to the effects of the accident. Dr Wood noted that other medical colleagues had regarded the respondent as a reliable informant. However, he thought they were incorrect and that the respondent was an inherently unreliable informant, not through conscious exaggeration but because of unconscious factors associated with USD. He did not add (although it must be implicit) that he also thought the judge had been wrong to accept the respondent’s evidence as reliable. Dr Wood thought that the end of litigation would be beneficial to the respondent and foresaw the possibility of some improvement if he could move away from the parental home and establish a degree of independence. However, he was not sanguine about the future. In any event, the continuing problems were constitutional in origin and were unrelated to the accident.

There followed the exchange of letters in which Dr Pither commented upon Dr Wood’s report and Dr Wood commented on Dr Pither’s comments and his answers to the Part 35 questions. I will not burden this judgment with an account of these differences. Suffice it to say that the doctors disagreed with each other. Dr Wood repeated his opinion that the litigation was reinforcing the extent to which the respondent saw himself as an invalid. Also, the respondent would have had a poor work record even if he had not had the accident.

Dr Wood examined the respondent on 19 January 2010 and required him to perform some psychometric tests including a personality assessment inventory. In a second report dated 19 March 2010, Dr Wood opined that the respondent was probably suffering from a somatoform pain disorder. This, as he explained in paragraph 204 of his report had complicated the respondent’s pre-accident USD. A somatoform pain disorder is also a psychosomatic condition, but is particularly related to an abnormal reaction to pain. In fact, Dr Wood felt unable to make a clear diagnosis of the pain disorder as the score on the personality assessment inventory was not high enough. However, Dr Wood thought that the scoring was not accurate because, he said, the respondent had ‘faked good’. By this, Dr Wood meant that the respondent had understated the severity of his symptoms, thereby producing an artificially low score. Dr Wood said that this was most unusual in patients involved in medico-legal assessments where exaggeration of symptoms was common. He repeated his view that the current disability was the result of the respondent’s underlying constitutional problem (the psychosomatic disorder) and not the road traffic accident. His potential to work was also undermined by this constitutional condition. The condition was now so longstanding that Dr Wood was doubtful of the efficacy of any psychological therapy.

In the meantime, the respondent had been examined by a consultant psychiatrist Dr Gaius Davies, who reported on 11 January 2010. He had also seen all the medical records and had read a copy of Dr Wood’s desktop report. His conclusion was that the respondent was suffering from a chronic pain disorder related partly to physical factors such as facet joint problems and partly to the anxiety and mild depression which had accompanied the chronic pain. He was of the view that this condition resulted directly from the accident and that there was no other underlying disorder such as chronic fatigue syndrome or any somatoform disorder. He rejected Dr Wood’s diagnosis and his reliance on the psychometric testing. He thought that the prognosis for a return to work was poor, although he hoped that, in time, the respondent would find a way to make a living. He noted that the respondent intended to move away from Grimsby with his fiancée and to start a new life. In later letters, Dr Davies commented on Dr Wood’s second report but his position remained the same.

On 14 April 2010, Dr Wood produced a final report following his examination of several video films which had been taken of the respondent over the years 2008 to 2010. He formed the view that the respondent was there seen moving much more freely than he had shown himself able to move during the medical examination. Dr Wood concluded that the respondent had consciously exaggerated his disability for the purposes of impressing the medico-legal examiner. He accepted that this further evidence undermined the diagnosis he had previously made of a somatoform disorder. In the alternative, both factors might be present; with deliberate exaggeration being added to the underlying disorder (which as he had previously explained was essentially a subconscious process). However, he observed that the issue of malingering was one for the judge and, if the judge was of the view that the respondent was not deliberately exaggerating his problems, then Dr Wood’s view was that the problems were due to the underlying psychological condition, USD. He added that it was likely that any discomfort associated with the accident was comparatively short-lived and did not add to the respondent’s problems in life for very long. His ability to return to work in October 2003 should be taken as a clear signal of the point at which the difficulties secondary to the accident were effectively over. Dr Wood was giving an opinion which was completely at odds with the findings that the judge had already made.

On 9^th July 2010, Dr Davies commented on the surveillance videos. He disagreed with Dr Wood that the videos showed the respondent doing things that he had claimed he could not do. He thought that the videos showed very mundane activities which were not at odds with the respondent’s claimed level of function on his better days. He also noted that there were many days on which the respondent did not appear outside the house. He thought the video evidence was consistent with the clinical impression he had formed of the respondent.

Given the stark difference of opinion revealed by the reports of the two psychiatrists, one wonders what could have been the use of a meeting and joint statement. However, the doctors did as instructed and met on 5 October 2010. The joint statement is 33 pages long and does not appear to me to make the issues any clearer.

At the start of the hearing, on 8 November 2010, the judge expressed his concern about the way in which the appellants appeared to be putting their case in reliance on Dr Wood’s report. It seemed that it was being alleged that the respondent was deliberately and fraudulently manufacturing his symptoms. If this were to be pursued, it should be fully pleaded. Thereupon, Mr Howard Elgot, the appellants’ counsel, withdrew that allegation and explained that, based on the respondent’s medical records and the opinion of Dr Wood, the case was that the respondent was suffering from USD and that even if the accident had not happened, he would have had a poor work record and a very restricted social life. The judge also recorded that the appellants acknowledged that they would not seek to go behind the findings he had made in his previous judgment. To my mind, it is surprising that the judge did not immediately say that he did not see how the appellants could run the case as they proposed to do without going behind his previous findings. The heart of Dr Wood’s opinion (the one he had to revert to after the withdrawal of the allegations of malingering, namely that this was a case of USD) did go behind the judge’s previous findings. I do not think that the appellants should have been permitted to run their case based on Dr Wood’s opinion. They should have been permitted only to adduce evidence of developments since the first hearing which were relevant to the future prognosis. Even then care would have had to be taken to ensure that there was no attempt to undermine the judge’s earlier findings. However, the appellants were permitted to run the case based on Dr Wood’s diagnosis of USD.

In his judgment, the judge summarised the written medical evidence in much the way that I have done. He also summarised the written statements of the respondent, his parents and fiancée. The gist of the respondent’s evidence was that he still had back pain, although this was variable, with good and bad days. Also, his sleep was affected and his social activities much restricted. He felt frustrated and depressed. He was still certified unfit for work and he said that, while living in Grimsby, an area of high unemployment, he was virtually unemployable. The respondent’s statements also dealt with a large number of other issues, mainly related to matters which Dr Wood had relied on in support of his diagnosis of USD. The respondent was cross-examined about these in some detail along lines intended to demonstrate that, before the accident, he was showing signs of developing a somatoform disorder, in the form of healthcare attention seeking behaviour. His responses were to the effect that he had had a number of things wrong with him and had simply acted on the medical advice given to him. It was also put to him that he had grossly exaggerated his complaints when applying for disability living allowance. He said that he had been advised to complete the form describing his symptoms at their worst, even though there were days when they were not so bad. Further it was put to him that he had ‘faked good’ when completing the personality assessment forms for Dr Wood. He denied that.

Dr Pither gave evidence confirming his opinions as set out in his reports and maintained his position in cross-examination. So did Dr Davies and Dr Wood. Dr Wood said that it was still his view that the respondent was consciously exaggerating his symptoms.

The judge summarised the oral evidence with care and no complaint is made about this part of his judgment. He then gave his opinions about the various experts. The gist of this was that he found both Dr Davies and Dr Pither to be impressive witnesses but he was critical of Dr Wood. I shall return to his reasons in due course as they are attacked on this appeal as being inadequate. Having expressed those views, it was but a short step for the judge to reach the conclusion, at paragraph 96, that the respondent was not suffering from USD and that he had a chronic pain disorder as explained by Dr Pither. However, the judge then went on to deal with each facet of the medical history on which Dr Wood had relied to support his diagnosis of USD. I will return to his reasoning when discussing the appellants’ submissions on this appeal.

At paragraph 105, the judge considered the extent of any psychological component in the respondent’s pain disorder. He accepted Dr Pither’s view that the claimant had become entrenched in his pain disorder and that his perception of his difficulties had been heightened as a result. Also the legal case was a contributory factor and, with settlement of the claim, some improvement could be expected. The judge thought that Dr Pither’s prognosis in respect of a return to work was a little pessimistic. He thought that, once the claim was resolved and the respondent married and moved away from Grimsby and the parental home, he would improve to a sufficient extent and would have the resolve and ability to find some paid work. This would have to be of a light nature and may well be part time. Thus, he would have some earning ability.

Finally in this section of the judgment, the judge considered whether on account of his psychological makeup, the respondent would have had more than the usual absences from work and gaps in employment. He reiterated that he rejected Dr Wood’s diagnosis of USD and also his theory that, absent the road traffic accident, the respondent would have focused on some other illness or trauma and would have ended up with similar disabilities to those he now had. However, the judge accepted that the respondent was a person who made more of his injuries and illnesses than other people might. He therefore reduced the award for loss of future earnings which he would otherwise have made to reflect his finding that, absent the accident, the respondent would probably have been off work more than the average person and would have had some gaps in his employment. In so finding, the judge allowed the appellants to go behind his previous findings to some extent.

The judge then assessed damages. The damages for pain and suffering were assessed at £32,500. Special damages came to £69,220. Future loss of earnings amounted to £270,400. Future care and services came to £82,289. With interest the total award was £461,007. The claimant’s final schedule had sought damages of £688k. On this appeal, no complaint is made as to the assessment of damages as such, only as to the underlying findings of fact.

Mr Elgot, who appeared for the appellants before this court with Miss Leila Benyounes submitted a notice of appeal and skeleton argument with no fewer than 17 grounds. These consisted of allegations that the judge failed to consider or to analyse or to understand some aspects of the evidence or that he reached irrational conclusions or gave inadequate reasons for them. There is also an allegation that the judge did not adopt an objective approach to the credibility of the respondent or his witnesses. This notice of appeal adopts what I can only call a scatter-gun approach. It fires at everything, apparently in the hope that a few bullets might hit the target. It is difficult to detect a thread or structure by reference to which the nub of the appeal may be summarised. However, in his oral argument, Mr Elgot focussed his attack on the judge’s preference for the views of Dr Davies over those of Dr Wood. He sought first to show that the judge’s reasons for rejecting Dr Wood were superficial and inadequate. Then he took us through the respondent’s entire medical history, contending that, if the judge had considered the evidence carefully and had understood it properly, he could not logically have rejected Dr Wood’s opinion.

Before I deal with the criticisms of the judge’s preference for the views of Dr Davies, I feel bound to observe that Dr Wood’s opinion was not consistent or compatible with the findings that the judge had made in his first judgment. The essence of Dr Wood’s opinion (stripped of his belief that the respondent was deliberately exaggerating his symptoms in order to impress a medico-legal examiner) was that the respondent had a constitutional condition (USD) which was already quite well developed at the time of his accident and that the effect of the accident had been very slight. The accident had resulted in some physical pain for a short time (about 8 months) but its long term effects were negligible because the respondent’s constitutional condition would have led him to find some other reason for displaying healthcare attention seeking behaviour and for not coping well with the ordinary demands of life. He would in any event have had a very poor work record. There can be no doubt that Dr Wood was expressing a view about causation. But the judge had already decided causation. In my view, it was simply too late for the appellants to advance Dr Wood’s theory at the second hearing. They were seeking to have a second bite at the cherry of causation. Fresh evidence on an issue already determined can only be admitted on or following an appeal where permission is given because the requirements of Ladd v Marshall [1953] 1 WLR 1489 have been met. Here there was no appeal and in any event those requirements could not have been met. There was no reason at all why the appellants should not have called the evidence of Dr Wood at the first hearing when it would have been admissible, relevant and possibly persuasive. In my view, the judge would have been entitled to reject Dr Wood’s evidence out of hand for that reason alone. Indeed, I think it would have been better if he had done so. He did not. He did, however, express his concern that his earlier findings should not be undermined. He was entitled to ensure that they should not be.

With that preamble I turn to examine the judge’s reasons for rejecting Dr Woods which Mr Elgot says are ‘inappropriately scant’ and ‘do not stand up to logical analysis’. Beginning within paragraph 93, the judge said:

“So far as Dr Wood is concerned, in my judgment it is relevant to bear in mind that he left NHS practice in 1992 and since that time has been engaged as a forensic psychiatrist in a medico-legal practice. Only 10% of his work is clinical work and the rest is the preparation of reports and opinions in a medico-legal context. On the other hand, Dr Davies was an NHS consultant psychiatrist at King’s College Hospital for almost twenty years to 1995, and thereafter he has continued in clinical practice as a psychiatrist. Two-thirds of his work is clinical work and one-third medico-legal work. So far as Dr Pither is concerned, I very much bear in mind that the defendants chose not to instruct a pain consultant in his case so that, as ordered by the Court on 10 March 2008, Dr Pither is the pain management expert in this case. Furthermore he is a very experienced consultant pain specialist and has researched extensively into pain and its treatment.

94.

I am afraid to say that I did not find Dr Wood an impressive witness, either in his written reports or in his evidence before me. I found it surprising that he was prepared to venture into making or postulating diagnoses regarding the claimant in his desktop report based mainly on his interpretation of the medical records, and without having examined the claimant. I consider that there is some force in Dr Davies’s observation about the desktop report, that Dr Wood was very prone to select a few statements and build upon it a whole speculative scheme with suggested diagnoses which did not stand up to any examination: for example Dr Wood’s suggestion that the claimant having tattoos was suggestive of narcissism, his conclusion that the claimant was verging on demonstrating a cardinal symptom of eating disorder and that there may be cannabis related amotivational syndrome. Subsequently, Dr Wood rather abandoned these diagnoses or potential diagnoses. Having maintained both before and after examining the claimant that he had USD, he then appeared to abandon this diagnosis in favour of the claimant being a malingerer once he had observed the surveillance evidence. In his oral evidence before me, whilst the defendants had abandoned any allegation of malingering, Dr Wood was still saying that, in his opinion, there was conscious exaggeration on the part of the claimant, although he had said in the joint statement that the alternatives lay between malingering, USD and a combination of the two, At times, Dr Wood made surprising assertions to support his conclusions. For example, in his oral evidence he asserted in relation to the claimant that it was healthcare seeking behaviour for him to have gone to the GP when he was 11 years old with an elbow graze showing signs of infection. One might have thought it would be said it would be neglectful of a parent not to take an 11 year old to the doctor in such circumstances.

95.

So far as Dr Davies was concerned, I found him a much more impressive witness, both in writing and in his oral evidence. His approach to the assessment of the claimant was, in my judgment, much more balanced and measured. He was prepared to be trenchant in his criticism of Dr Wood and his approach, but, in my view, with some justification. Equally, I found Dr Pither an impressive witness with a very clear insight into the cause and treatment of chronic pain. In my judgment, the Court should be very slow to reject the findings of an expert who has been ordered by the Court to be the pain management expert in the case.

96.

My overall conclusions are that, insofar as Dr Pither and Dr Davies differ from the views of Dr Wood, the views of the experts called on behalf of the claimant are to be preferred to Dr Wood’s. Thus I reject Dr Wood’s conclusion that the claimant is suffering from USD and would have suffered from it but for the road traffic accident and I accept the opinions of Dr Pither and Dr Davies that the claimant suffers from chronic pain disorder which has developed as a result of the back injury suffered in the road traffic accident, namely damage to the facet joints in the lumbar spine.

I cannot accept that those general conclusions could be described as ‘inappropriately scant’. They are quite full, clearly expressed and factually accurate. In my opinion they are more than adequate to explain the judge’s thinking.

Mr Elgot also submits that these reasons do not stand up to logical analysis. First, he submitted that the judge’s implied criticism of Dr Wood because he now did little clinical work was irrational. In my view it is not. Many judges take the view that a doctor who is still in clinical practice is more likely to keep up to date with new developments and is also more likely to provide a rounded opinion, combining his expertise in his subject with his view of the individual patient following clinical examination. I see no reason why this factor should not carry some weight. I would agree that it would not amount to a sufficiently good reason for forming a preference if it stood alone but it did not. It was but one of several reasons, another of which was particularly relevant to Dr Wood’s lack of recent clinical experience, namely his willingness to reach conclusions based solely on his examination of the medical records.

Mr Elgot’s main submissions on the irrationality of the judge’s conclusions amounted in effect to an attempt to persuade us to retry the case de novo, by reference to the medical records. He took us in great detail through each of the features on which Dr Wood relied, such as the repeated medical attendances related to weight loss, apparently minor physical injuries and chronic fatigue. He showed us entries which, he submitted, demonstrated what an unreliable historian the respondent was. He showed us the apparently highly-coloured descriptions of his symptoms and disabilities given at various times, in particular when completing an application for Disability Living Allowance. He characterised these accounts as bizarre and described the respondent as being ‘very odd’. He relied too on the video surveillance which he said supported Dr Wood’s opinion.

As I have already indicated, the judge dealt with each and every one of these arguments in his judgment. He considered that he should do so because of the need to assess the degree of disability arising from the chronic pain disorder and what the respondent’s employment and health record would have been but for the accident. In so doing, he permitted the appellants to attempt to unravel findings which had been made at the first hearing.

The judge concluded that the respondent had never had an eating disorder, as the appellants contended. He considered that the respondent was naturally very thin and that he suffered some weight loss during his viral illness of December 2002. He had not been to blame for the various inconsistent references to weight loss appearing in his medical records; these had probably occurred because one of the doctors had told the respondent what his normal weight should be for his height and the respondent had regarded himself as underweight based on that figure. The repeated medical attendances in respect of weight loss were not indicative of any obsession with weight or an eating disorder; rather there had been genuine concern by the medical practitioners and the respondent had gone along with the various referrals. The appellants do not accept that conclusion about the weight loss but it is supported by evidence which it was open to the judge to accept. It cannot be regarded as perverse.

Similarly, the judge rejected the appellants’ theory that the respondent had ever had chronic fatigue syndrome. He did accept that he had suffered fatigue following the viral illness but that was a different matter. That was Dr Davies’ opinion which the judge was entitled to accept. There is nothing irrational about it.

The judge also rejected the notion that the respondent’s reaction to his knee injuries was abnormal, while accepting that he may well be a person who experiences pain to a greater degree than another individual might, as Dr Pither had explained. He considered that the knee injuries had been quite significant and had required ongoing treatment. In any event, the respondent had eventually recovered from them. There was nothing in the history of knee complaints to support Dr Wood’s diagnosis of USD. This was a conclusion the judge was entitled to reach; it was not in any way perverse.

At paragraph 100, the judge considered the appellants’ submission that the extent of the respondent’s disability was less than he claimed. That was relevant he said, not only to the diagnosis of USD but also to the assessment of damages. The judge said that, having seen the surveillance evidence, he rejected the views of Dr Wood and accepted those of Drs Pither and Davies. There was, in his view, no inconsistency between the films and the respondent’s account of his disabilities. This court has also seen the video surveillance evidence. Speaking for myself, I would say not only that the judge’s conclusions were open to him but also that I agree with them.

At paragraph 101, the judge accepted the respondent’s explanation for the way in which he had completed the application form for Disability Living Allowance. He accepted that the respondent had described how he was on his worst days. This had been done in good faith. I would agree with the appellants that the respondent’s account in his benefit application does appear to be rather florid. Without the benefit of having seen the respondent, I myself might well have concluded that the account had been dishonestly advanced. But the judge had seen the respondent give evidence on two separate occasions and he was entitled to accept his evidence on this issue as on others.

At paragraph 101, the judge felt it necessary to attempt to resolve an issue which had taken up a great deal of time during the hearing but which the judge felt was not of any real importance. The appellants had attacked the respondent’s credibility on the basis that he had claimed that he could not travel far in a car without taking a break. The appellants alleged that, on the day of his examination by Dr Wood, he had been driven back from Leeds to Grimsby without a stop, a journey which had taken about 1 hour and 40 minutes. The respondent and his father, who had driven him, were adamant that they had stopped on the return journey at a public house in Cleckheaton and at the Doncaster Services. The inquiry agents who were following the car were adamant that they had not. The surveillance film could not prove either case. The judge said that he was not prepared to disbelieve the respondent and his father on this issue and thought it possible that the enquiry agents had lost the car in the fog and had found it later. In any event, said the judge, even if the enquiry agents were right, all this showed was that the respondent had managed on that one day to stay in the car for 1 hour and 40 minutes.

Mr Elgot submitted that the judge’s conclusion showed that he was not objective when considering the respondent’s credibility. I can see some force in that submission. However, the judge had seen both the respondent and his father on two occasions and was entitled to believe them even though there were quite strong pointers in the opposite direction. The judge himself recognised the starkness of the conflict and said that he found the issue difficult to decide. However, he pointed out (rightly in my view) that not a great deal turned upon the point.

The appellants do not agree with the judge’s conclusions and challenge them as unsupportable both individually and collectively. The challenge was mounted almost entirely by reference to the medical records. How could the judge reach his conclusions when you see what the medical records say? I would accept that, viewed in isolation, the medical records could be seen as presenting a picture of healthcare attention seeking behaviour which would support Dr Wood’s diagnosis of USD. However, the medical records are not to be read in isolation but in the context of the evidence as a whole. All of the factors on which Dr Wood relied were addressed. The judge had summarised the evidence very thoroughly at an earlier stage of his judgment and it was not incumbent upon him to refer again to every facet of the evidence when stating his conclusions. His conclusions were not perverse.

I acknowledge that the sum awarded seems surprisingly large for an injury following so minor an accident. It was for that reason that Tomlinson LJ gave permission for this appeal. It may be that, if Dr Wood’s evidence had been presented at the first hearing and if he had undertaken a thorough clinical examination as well as examining the records before he expressed his views, the judge might have accepted his evidence and the award of damages would have been very much lower. As it was, Dr Wood’s opinion was expressed too late, when relevant findings of fact had already been made and not appealed. In my view, the appellants should count themselves fortunate that the judge was prepared to undertake a partial reconsideration of the respondent’s personality and psychological make up with the result that he reduced the award for future loss of earnings below that which he would have made if he had taken exactly the same view as he had taken during the first hearing.

For these reasons I would dismiss this appeal.